EXHIBIT 10.3
FILE
SUBLEASE
THIS SUBLEASE (this "Sublease" or this "Agreement") is made as of Aug 15,
2003, between JPI APARTMENT DEVELOPMENT, L.P., a Delaware limited partnership
("Sublessor") and XXXXXXXX HOMES CORPORATION, a Colorado corporation
("Sublessee")
RECITALS
A. The Equitable Life Assurance Society of the United States, a New York
corporation ("Prime Lessor"), and Sublessor executed that certain Office Lease
dated as of April 20, 2001 (the "Prime Lease") for certain premises in the
building known as MCI Plaza, 6312 South Fiddler's Green Circle, Englewood,
Colorado (the "Building").
B. Sublessee desires to sublease certain premises from Sublessor on the
terms and conditions set forth herein.
Terms used herein which are defined in the Prime Lease, and which are not
otherwise defined herein, shall be given the same meanings herein as are
ascribed to them in the Prime Lease.
NOW, THERFFORE, for and in consideration of the foregoing and for other
good and valuable consideration and of the mutual agreements hereinafter set
forth, Sublessor and Sublessee stipulate, covenant and agree as follows:
1. Basic Sublease Provisions.
(a) Annual Base Rental: Annual Base Rental for the Sublease Premises
shall be as follows:
Months 1- 6: $0.00
Months 7-18: $17.75 per square foot of Rentable Area
Months 19-30: $18.75 per square foot of Rentable Area
Months 31-42: $19.50 per square foot of Rentable Area
(b) Security Deposit: $17,078 Sublessor shall hold security deposit as
security for the full and faithful performance by Sub-Tenant under the
terms of this sublease Security Deposit shall be returned to Subtenant
within 21 days of the expiration of this sublease.
(c) Sublease Premises: Sublessor hereby agrees to sublease to
Sublessee, and Sublessee hereby agrees to sublease from Sublessor, the
space referred to as Suite 500N, located on the fifth (5th) floor of the
North Building outlined on the floor plan attached hereto as Exhibit A (the
"Building Premises"). The parties stipulate that for purposes of this
Sublease the Rentable Area of the Sublease Premises shall be deemed to be
11,546 square feet.
(d) Sublessee's Base Year: 2003 calendar year.
(e) Term: The Term of this Sublease shall commence on September 1,
2003, and expire on February 28, 2007.
(f) Use: Sublessee shall use and occupy the Sublease Premises for
general office purposes and for no other purpose.
2. Payment of Base Rent. Beginning on the Commencement Date, Sublessee
shall pay the Annual Base Rental set forth in Section 1(a) to Sublessor, without
prior demand therefor and without any deduction whatsoever. Annual Base Rental
shall be paid in equal monthly installments in advance on the first day of each
month of the Term. Annual Base Rental shall be pro-rated for any partial months
at the beginning and end of the Term.
3. Payment of Additional Rent. Beginning on the Commencement Date,
Sublessee shall pay the Additional Rent comprised of excess Operating Costs and
excess Taxes required to be paid under Section 5 of the Prime Lease entitled
"Adjustment of Rent"; provided, however, that in calculating the Additional Rent
that Sublessee is required to pay under this Sublease, the base year shall be
deemed to be the 2003 calendar year rather than the 2001 calendar year
referenced in the Prime Lease. Sublessee shall pay such Additional Rent to
Sublessor at the same time and in the same manner as same is payable by
Sublessor to Prime Lessor under the Prime Lease. Sublessor shall furnish to
Sublessee a copy of the xxxx and other materials received from Prime Lessor in
respect of Additional Rent becoming payable under the Prime Lease.
4. Condition of Sublease Premises. Sublessee shall accept the Sublease
Premises in "as is" condition. Sublessor is not responsible for and shall not be
required to perform work of any kind or nature with respect to the Sublease
Premises.
5. Furniture in Sublease Premises. Sublessor agrees that during the Term of
this Sublease, Sublessee shall have the right to use, at the sole expense of
Sublessee, the furniture, phones and equipment owned by Sublessor now located
within the Sublease Premises. Sublessee agrees to maintain such furniture,
phones and equipment in good repair and condition, reasonable wear and tear
excepted. If no default by Sublessee occurs during the first twenty four (24)
months of the Term, then upon the expiration of such twenty fourth (24) month,
Sublessor shall convey to Sublessee by xxxx of sale the furniture (as outlined
in the attached Exhibit A owned by Sublessor located within the Sublease
Premises.
6. Parking. During the Term, Sublessee shall have the right to use the
thirty five (35) unreserved garage stalls that Sublessor has the right to use
under Section 34 of the Prime Lease, seven (7) of which parking spaces are
reserved spaces. Sublessee shall be responsible for paying any charges by Prime
Lessor for such parking spaces.
7. Representations Regarding Prime Lease. Sublessor warrants to Sublessee
that a true and correct copy of the Prime Lease is attached hereto as Exhibit B.
Sublessor further warrants and represents to Sublessee that the Prime Lease has
not been amended, and to the current actual knowledge of Sublessor, no party is
in default under the terms of the Prime Lease.
8. Provisions of Prime Lease. This Sublease and all the rights of the
parties hereunder are subject and subordinate to the Prime Lease. Each party
agrees that it will not, by its act or omission to act, cause a default under
the Prime Lease. In furtherance of the foregoing, the parties hereby confirm,
each to the other, that it is not practical in this Sublease to enumerate all of
the rights and obligations of the various parties under the Prime Lease and
specifically to allocate those rights and obligations in this Sublease.
Accordingly, in order to afford to Sublessee the benefits of this Sublease and
of those provisions of the Prime Lease which by their nature are intended to
benefit the party in possession of the Sublease Premises, and in order to
protect Sublessor against a default by Sublessee which might cause a default or
event of default by " Sublessor under the Prime Lease, the parties agree as
follows:
(a) Provided Sublessee shall timely pay all rent when and as due under
this Sublease, Sublessor shall pay, when and as due, all Base Rent,
Additional Rent and other charges payable by Sublessor to Prime Lessor
under the Prime Lease;
(b) Except as otherwise expressly provided herein, Sublessor shall
perform its covenants and obligations under the Prime Lease which do not
require for their performance possession of the Sublease Premises and which
are not otherwise to be performed hereunder by Sublessee on behalf of
Sublessor.
(c) Except as otherwise expressly provided herein, Sublessee shall
perform all affirmative covenants (including specifically, without
limitation, the covenants described in Sections 6, 15 and 37 of the Prime
Lease) and shall refrain from performing any act which is prohibited by the
negative covenants of the Prime Lease, where the obligation to perform or
refrain from performing is by its nature imposed upon the party in
possession of the Sublease Premises.
(d) Sublessor will not modify the Prime Lease in a manner which might
have an adverse affect on Sublessee's use or occupancy of the Sublease
Premises without the consent of Sublessee, which consent shall not be
unreasonably withheld or delayed.
(e) Sublessor hereby grants to Sublessee the right to receive all of
the services and benefits with respect to the Premises that are to be
provided by Prime Lessor under the Prime Lease. Sublessor shall have no
duty to perform any obligations of Prime Lessor, which are, by their
nature, the. obligation of an owner or manager of real property. For
example, Sublessor shall not be required to provide any services or repairs
that the Prime Lessor is required to provide under the Prime Lease.
Sublessor shall have no responsibility for or be liable to Sublessee for
any default, failure or delay on the part of Prime Lessor in the
performance or observance by Prime Lessor of any of its obligations under
the Prime Lease, nor shall such default by Prime Lessor affect this
Sublease or waive or defer the performance of any of Sublessee's
obligations hereunder except to the extent that such default by Prime
Lessor excuses performance by Sublessor under the Prime Lease.
Notwithstanding the foregoing, the parties contemplate that Prime Lessor
shall, in fact, perform its obligations under the Prime Lease and in the
event of any default or failure of such performance by Prime Lessor,
Sublessor agrees that it will, upon notice from Sublessee, make demand upon
Prime Lessor to perform its obligations under the Prime Lease and, provided
that Sublessee specifically agrees to pay all costs and expenses of
Sublessor, Sublessor will take appropriate legal action to enforce the
Prime Lease.
9. Additional Services. During the Term, Sublessee shall pay Prime Lessor's
charge for any services required by Sublessee in addition to those otherwise
required to be provided by Prime Lessor under the Prime Lease. Sublessee shall
pay for such services promptly after having been billed therefor by Prime Lessor
or by Sublessor.
10. Quiet Enjoyment. Sublessee covenants and agrees that Sublessee shall
not do or suffer or permit anything to be done which would constitute a default
under the Prime Lease or would cause the Prime Lease to be canceled, terminated
or forfeited by virtue of any rights of cancellation, termination, or forfeiture
reserved or vested in Prime Lessor under the Prime Lease, and that Sublessee
will indemnify and hold harmless Sublessor from and defend Sublessor against all
claims, liabilities, losses and damages of any kind whatsoever (excepting
special and consequential damages) that Sublessor may incur by reason of,
resulting from or arising out of any such cancellation, termination or
forfeiture. Sublessor covenants and agrees with Sublessee that upon Sublessee
paying the Base Rent and Additional Rent reserved in this Sublease and observing
and performing all of the other obligations, terms, covenants and conditions of
this Sublease on Sublessee's part to be observed and performed, Sublessee may
peaceably and quietly enjoy the Sublease Premises during the Term; provided,
however, that the Sublease shall be subject to the provisions of the Prime Lease
and shall automatically terminate upon termination of the Prime Lease. Sublessee
shall have no claim against Sublessor by reason of any termination of the Prime
Lease, unless such termination was caused by the default of Sublessor in the
performance of its obligations under the Prime Lease which have not been assumed
by Sublessee hereunder.
11. Assignment and Subletting.
(a) Sublessee may not, without the prior written consent of Sublessor
and Prime Lessor: (i) assign or transfer this Sublease or any interest
therein; (ii) permit any assignment of this Sublease or any interest
therein by operation of law; (iii) sublet the Subleased Premises or any
part thereof; (iv) grant any license, concession, or other right of
occupancy of any portion of the Subleased Premises; or (v) mortgage,
pledge, or otherwise encumber its interest in this Sublease. Sublessor's
consent to any assignment or subletting is not a waiver of Sublessor's
right to approve or disapprove any subsequent assignment or subletting.
Sublessee shall remain jointly and severally liable for the payment of Rent
and performance of all other obligations under this Sublease after any
assignment or subletting.
(b) If Sublessor shall consent to an assignment or subletting, without
implying or requiring the granting of such consent, then any excess
consideration payable to Sublessee as a result of such assignment or
sublease (less brokerage commissions, attorneys' fees and other
disbursements reasonably incurred by Sublessee for such assignment and
subletting) shall be payable to Sublessor. Sublessor shall be solely
responsible for paying to Prime Lessor any portion of such excess
consideration payable to Prime Lessor under the Prime Lease.
(c) If a default occurs after an assignment or subletting, in addition
to any other remedies available to Sublessor hereunder or provided by law,
Sublessor may at its option collect directly from the assignee or sublessee
all rents payable to Sublessee under the assignment or sublease and apply
the sums so received against any sums due to Sublessor under this Sublease.
Sublessee authorizes and directs any assignee or sublessee to make such
payments directly to Sublessor upon receipt of notice from Sublessor. No
direct collection of rent by Sublessor shall be a novation or a release of
Sublessee from the performance of its obligations under this Sublease.
Receipt by Sublessor of rent from any assignee or sublessee is not a waiver
of the covenant against assignment and subletting or a release of
Sublessee.
12. Casualty and Condemnation. Sublessor and Sublessee agree that if by
operation of the provisions of Section 21 of the Prime Lease entitled
"Untenantability" and Section 21 of the Prime Lease entitled "Eminent Domain,"
the Prime Lease continues in full force and erect and Rent is abated, then this
Sublease shall likewise continue in full force and effect and the Rent payable
by Sublessee hereunder shall xxxxx to the same extent that Rent under the Prime
Lease is abated. No compensation or claim or will be allowed or paid by
Sublessor by reason of inconvenience, annoyance or injury to Sublessee's
business arising from the necessity of effecting repairs to the Premises or any
portion of the Building.
13. Notices. Any notice, demand or request under this Sublease shall be in
writing and shall be considered property delivered when addressed as herein
provided and delivered by registered or certified mail (return receipt
requested) which is deposited in the United States general or branch post
office, or delivered by private express mail service. Any notice, demand or
request by Sublessor to Sublessee shall be addressed to Sublessee and Sublessor
at the addresses set forth on the signature pages hereof, until either shall
direct otherwise in writing. Rejection or other refusal to accept or the
inability to deliver because of a changed address of which no notice was given
shall be deemed to be receipt of the notice, demand or request sent. To the
extent that Sublessor receives or gives any notice to Prime Lessor which may
have an effect on Sublessee's use or occupancy of the Sublease Premises,
Sublessor shall provide a copy of such notice to Sublessee.
14. Binding and Entire Agreement. This Sublease shall be binding on
Sublessor and Sublessee and their respective successors and assigns. This
Sublease contains the entire agreement of the parties with respect to the
subject matter herein and may not be modified except by instrument in writing,
which is signed by both parties.
15. Consent Prime Lessor. This Sublease is conditioned upon Prime Lessor's
execution of a consent to this Sublease (the "Consent to Sublease") as required
by the Prime Lease, in form reasonably satisfactory to Sublessor and Sublessee.
Sublessee shall be responsible for the payment of any fees or expenses charged
by Prime Lessor in connection with this Sublease.
16. Broker Agreement. The parties warrant and represent to each other that
no Person has negotiated or brought about this transaction other than Xxxx
Xxxxxxxxx of Xxxxxxxxx Commercial, who will be compensated according to a
separate agreement with Sublessor ("Broker"). Sublessor and Sublessee shall
defend, indemnify, and save harmless one another from and against any claim
which may be asserted against one of them by any person other than Broker if the
claim is made in connection with this transaction claiming under such party.
This section shall survive the expiration or earlier termination of this
Sublease.
17. Attorney's Fees. If it becomes necessary for either party to secure the
services of an attorney in order to collect any amount due hereunder or to
enforce any of the provisions hereof, the defaulting party agrees and binds
itself to pay to the other reasonable attorney's fees and court costs.
18. Interpretation. This Sublease shall be construed and interpreted under
the laws of the State of Texas.
19. Time of Essence. Time is of the essence in the performance of all
obligations of the parties.
20. Counterparts. Any number of counterparts of this Sublease may be
executed by the parties hereto, and each executed counterpart shall be deemed an
original agreement.
IN WITNESS WHEREOF, duly authorized representatives of the parties hereto
have executed this Sublease as of the day and year first above written.
[The remainder of this page is intentionally left blank. Signatures
appear on the following signature pages, attached hereto and made apart hereof.]
SIGNATURE PAGE
TO
SUBLEASE AGREEMENT
BETWEEN
JPI APARTMENT DEVELOPMENT, L.P.
AND
XXXXXXXX HOMES CORPORATION
SUBLESSOR:
JPI APARTMENT DEVELOPMENT, L.P.,
a Delaware limited partnership
By: Lifestyle Apartment Development
Services LLC,
its general partner
By: /s/ Xxx Xxxxxx
--------------
Name: Xxx Xxxxxx
Title:
Address:
--------
JPI Apartment Development, L.P.
Attn: Xx. Xxx Xxxxxx
000 Xxxx Xxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
SIGNATURE PAGE
TO
SUBLEASE AGREEMENT
BETWEEN
JPI APARTMENT DEVELOPMENT, L.P.
AND
XXXXXXXX HOMES CORPORATION
SUBLESSEE:
XXXXXXXX HOMES CORPORATION,
a Colorado corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: VP - Finance
Address:
--------
00 Xxxxxxxxx Xxxxx X, Xxxxx 000
Xxxxxxxxx, XX. 00000
